Casey's Top Ten Music-Tech-Policy Developments of 2013

Post by FMC Interim Executive Director Casey Rae

Another year, another white-knuckle thrill ride in the world of music policy. There was so much going on in 2013 that if you blinked, you’d be in danger of being clobbered by the next development. And that’s just on the legislative, executive and federal agency side—we could (and might!) compile a separate list of marketplace and legal developments.

Below is an instant replay of some of 2013’s biggest policy episodes. Order does not connote rank, but feel free to debate it anyway…

1. Congress initiates Copyright Act review
This is a big deal. When United States Copyright Office head Maria Pallante invoked “the next great Copyright Act” in a speech earlier this year, Congress was paying attention. In April 2013, Representative Bob Goodlatte (R-VA) signaled his intent have the House committee he chairs review the Copyright Act with an eye towards updating it for the digital age (keep in mind the last complete overhaul to the Act was way back in 1976—aeons ago in technology time). There have since been several hearings at the House Subcommitee on the Courts, Intellectual Property and the Internet, with more planned for 2014. FMC submitted testimony in almost all of ‘em, and we’re working to ensure that musicians and composers are part of the process going forward.

2. Open Internet Order faces court challenge
Remember that little ol’ issue called Net Neutrality? Well, it’s still a thing. And it’s still vitally important to musicians and others who benefit from a level online playing field. You might already know about FMC’sRock the Net Campaign, which united thousands of artists and independent labels in support of an open and accessible Internet. You may have heard that the FCC issued an Order in 2010 containing clear rules of the road for Internet Service Providers (ISPs). Under the rules, wireline networks are required to treat all traffic equally and to stick to reasonable network management practices. The rules apply differently to mobile networks—wireless providers have more leeway to block certain applications or devices. Still, the Order does establish basic guidelines to preserve openness and accessibility. Absent these rules, ISPs would have more freedom to do whatever they want, to the disadvantage of creative entrepreneurs and other innovators. But theFCC’s authority to enforce the these rules have been contested in federal court by Verizon. Word is a decision in this case is imminent. The outcome could go a few different ways, but one thing is for certain: musicians are ready, willing and able to go to bat for an internet that doesn’t just work for a handful of ginormous companies.

3. Low power FM licensing window opens
In June 2013, theFederal Communications Commission(FCC) released a public notice announcing a filing window for applications for new low powerFM(LPFM) radio stations. LPFMs are community-based, non-commercial radio stations that operate at 100 watts or less and reach a radius of 3 to 7 miles (check out ourLPFMfact sheet for more info). These small but mighty stations are an alternative to broadcasters that seem to play the same five songs on infinite repeat. LPFMs also offer a wide variety of small, independent organizations—including schools, civic groups, churches, and non-profits—a platform from which to engage with local communities. The two week window ran from October 15-29 and is now closed. But the good news is that we can soon anticipate the arrival of true community radio in many markets that have too long gone without.

4. Affordable Care Act goes live
We all know about the issues with the healthcare.gov website and the relentless political jockeying it inspired. But that doesn’t change the fact that the Affordable Care Act is now the law of the land, and that expanded access to health insurance is a good thing for musicians and other artists. According to a recent surveyFMCconducted in partnership with the Artists’ Health Insurance Resource Center (AHIRC),US-based artists — dancers, musicians, visual artists, theatre actors, film and media artists — are less likely to have health insurance than the general public. In fact,43% of survey respondents said they currently do not have health insurance. We know this stuff can get confusing. Which is why we created the Artists and the Affordable Care Act website. This page includes anFAQ, a list of artist-focused educational events and seminars, and links to videos and online calculators. There’s also a staffed musician-friendly hotline at 1-919-264-0418, and artists can email their questions to healthcare [at] headcount [dot] org. We’ll do our best to keep you informed about developments around implementation of ACA, so stay tuned.

5. Pandora ditches Internet Radio Fairness Act
Although hostilities in the Great Webcasting Royalty Rates Wars are unlikely to end anytime soon, December 2013 brought something of a détente. Webcasting market leader Pandora abandoned its legislative efforts around royalties, choosing instead to focus on the regularly-scheduled rate-setting process before the Copyright Royalty Board. If this all sounds crazy confusing, check out our Rising Tides campaign, which describes what we think is important with regard to artist compensation and the growth of the internet radio marketplace. We’ll be keeping a close eye on developments.

6. Performance rights for terrestrial radio bill introduced
There’s been so much focus on internet radio royalties that it’s easy to forget that old-fashioned AM/FM radio in America still does not pay performers and sound copyright owners a single penny for the over-the-air broadast of their work. This puts us in the company of such stalwart champions of artists’ rights as China, Iran and North Korea. In September, the latest attempt to close this unfair loophole in copyright law was put forward. The Free Market Royalty Act, introduced by Representative Mel Watt (D-NC) aims to address the lack of a performance right by establishing a process through which parties can negotiate “fair market” rates while compensating artists in a manner similar to the existing public performance right for digital broadcasts. It’s anybody’s guess as to whether this bill gets any traction, and its described “solution”—to eliminate the compulsory for all radio royalty rate-setting is probably too cute by half. Still, we believe that terrestrial radio should compensate performers for the use of their work, as happens in every developed nation on the planet except this one.

7. White House issues Ad Piracy best practices
This year saw lots of attention paid to “brand-supported piracy.” Put simply, this is when major corporations have their products advertised on sites that offer music, movies andTVshows to which they don’t have the rights. This doesn’t sit well with creators and content companies, who are frustrated at third parties making money from unauthorized access to their works. The administration has been paying attention and helped assemble stakeholders to work towards a solution. In July, the White HouseOffice of theU.S.Intellectual Property Enforcement Coordinator(IPEC) and the Interactive Advertising Bureau (IAB) releasedbest practices guidelinesthat aim to reduce the flow of advertising revenue to operators of sites that are principally dedicated to selling counterfeit goods or engaging in copyright infringement. The guidelines suggest maintaining policies to discourage or prevent ads being served on infringing sites, along with ongoing dialogue with content creators, rightsholders, consumer organizations and free speech advocates. Since the agreements are so new, it’s hard to know what impact they’re having. Still, FMC’s Casey Rae and David Lowery of Cracker/Camper Van Beethoven are committed to taking a look-see in a thrilling panel at SXSW 2014.

8. Julius Genachowski steps down as FCC Chair
So, this happened. We’ll let our statement from March do the talking:

“When Chairman Genachowski was appointed to lead theFCC, we saw a clear path for him to set a proactive agenda and advance the Commission’s stated goals of localism, competition and diversity. While Genachowski can count some accomplishments on this front, such as expanded Low PowerFM, the promulgation of basic rules to preserve an open internet as well as opposition to a proposed merger betweenAT&T and T-Mobile, there were also missed opportunities. Commercial radio remains highly concentrated, with few openings for female and minority ownership, as well as restrictive programming which fails to reflect the diverse expression found in our local communities.

“Bold leadership at theFCCis as needed today as it was five years ago. Accessible and affordable high-quality internet remains out of reach in too many American towns and cities. Internet Service Providers and mobile carriers are free to impose arbitrary data caps on consumers. And the virtues of an open and accessible internet where creative entrepreneurs can express and innovate must be defended.”

9. Tom Wheeler nominated as FCC Chair
The Senate nomination process to confirm Genachowski’s successor was held up by political nonsense, but eventually venture capitalist and former telecommunications industry lobbyist Tom Wheeler was approved. In another interesting development, Gigi Sohn, former President andCEOof Public Knowledge, stepped into role of Special Counsel for External Affairs in the Chairman’s office. We look forward to seeing what kind of agenda develops and how it might shape the future of music.

10. USPTO plants “green paper” on Copyright Policy, Creativity and InnovationWay back in 2010, FMC filedcommentsin a proceeding that resulted in this year’s report,Copyright Policy, Creativity, and Innovation in the Digital Economy[PDF]. This “green paper”—a joint product of the United States Patent and Trademark Office (USPTO), the Department of Commerce (DOC) and the National Telecommunications and Information Administration (NTIA)—covers a whole host of issues that impact the music ecosystem. In November 2013, we filed additional comments. Because that’s what makes this paper “green.” Specifically, FMC spoke to issues around streamlining licensing, notice-and-takedown/safe harbor requirements for websites and Internet companies, as well as how best to approach sampling and remix culture. We also went on record in support ofvoluntary global copyright registriesand/or authentication databases to create greater efficiency and get more musicians and composers paid. And of course, we stressed the importance of transparency and artist leverage on digital services. (You can read it all right here.) In December, the USPTO had the first of what is anticipated to be a series of public meetings with stakeholders on these issues—if and when more convenings take place, we’ll be all over it.